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By Kathi J. Smith, Esq.

Matters that are subject of litigation are ultimately decided on facts and the applicable law. We uncover those facts by “discovery.”  There are many tools in the discovery toolbox. A deposition (questioning of a party or witness under oath, often referred to as a “depo”) is one of the most powerful tools.

At the start of the proceeding, the judge sets a date by which depositions are to be completed. Attorneys issue subpoenas requiring a party or witness to appear at a certain place on a certain date and time (production of documents or other evidence may also be requested). A court reporter is present to create a record of the questions and answers. Depositions are usually video-recorded.

At the deposition, both parties should have their attorneys present. A witness can have his/her own attorney present if he/she so desires. Those testifying are placed under oath, and the attorney issuing the subpoena then starts the questioning. Next, the opposing attorney has a turn to ask follow up questions. This normally goes back and forth until the attorneys are done.

Depositions aren’t just about questions and answers. Just as critical as what was said can be how it was said.  Was the person evasive? Uncomfortable? Credible? Nervous? Sure of the facts? Would the person damage or help the case if testifying in court? These issues can be critical when deciding whether to settle a case or proceed further. If one party’s witnesses are much weaker than those of the opposition, it may make that party much more willing to settle.

If you’re going to be deposed, you should keep the following in mind:

Tell the truth.  If you knowingly make a false statement while you’re under oath, you may be charged with perjury.  In addition, you will lose credibility, and weaken, your case.

If you honestly don’t know the answer to a question, say you don’t know. A deposition isn’t a contest and you won’t lose points by truthfully admitting you don’t know something. Don’t try to help the questioner by answering what you think they really wanted to know, rather than what they actually asked. The questioner will fine tune his/her questions as the deposition progresses.

Stick to the point and answer the questions as asked.  Needlessly stating information not requested may damage your case.

If you don’t understand a question, ask that it be repeated or re-phrased. After you have clearly understood the question, answer it. Your attorney may object to a question, but you may have to answer it anyway. Prior to trial, your attorney may ask the judge not to use the response as evidence, as the question was improper.

You are entitled to consult your attorney during the deposition. If you feel unsure or uneasy about the line of questioning, consult with your attorney. You can even leave the room for a short while if you let your attorney know that you need a break.

Though depositions can be stressful, they are not to be feared. They are opportunities for all parties involved in a legal matter to tell their side of the story.

Should you find yourself being served with a subpoena or other demand for your deposition, either as a party to a lawsuit or as a witness, it is very important that you are adequately prepared in advance by a knowledgeable litigation attorney. What you say in a deposition can, and often does, come back to haunt you later. Please feel free to call us to arrange a meeting with a Schneiders & Associates litigation attorney before you have to face your deposition. 

Schneiders & Associates, L.L.P. is a multi-service law firm located in Oxnard, California with a focus in civil litigation matters.

About the Author
Theodore J. Schneider practices in the areas of business and corporate transactions, employment law counseling, municipal and public law, real estate and land use, and homeowner associations. Ted began his legal career in 2002 when he joined the Los Angeles office of Gibson, Dunn & Crutcher, L.L.P. before relocating to Ventura County to join his father in practice.